Was served with a breach of contract complaint. There is no rescission cause of action stated. There is only a statement (under "General Allegations") that the Complaint itself serves as a notice of rescission. Does rescission have to be properly pleaded or is this simple statement of notice sufficient to claim rescission?
Civil Code section 1691(b) states "...When notice of rescission has not otherwise been given or an offer to restore the benefits received under the contract has not otherwise been made, the service of a pleading in an action or proceeding that seeks relief based on rescission shall be deemed to be such notice or offer or both." So they included the notice of rescission in the complaint, but does that amount to "an action or proceeding that seeks relief based on rescission?"
Rescission is not a cause of action----it is an equitable remedy. As such, the plaintiff is not required to plead rescission as a cause of action in the complaint.
The request for rescission is ordinarily included as part of the plaintiff's prayer for relief, so it is a bit unusual that it was instead included in the general allegations. But if it is otherwise clear from the complaint that the plaintiff is requesting the remedy of rescission, this may not be much of an issue.
The information presented here is general in nature and is not intended, and should not be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author, and Pham Law Group does not represent you as your attorneys until retained by a written retainer agreement signed by both parties.
Rescission is not a separate cause of action. Rescission of a contract terminates liability and restores the parties to their former positions by requiring each party to return whatever benefit he or she received under the contract. (Civil Code §1692.)
The effect of a rescission is to extinguish the contract. (Civil Code §1688). The rescinding party is entitled to restitution. Restitution is a remedy for rescission. In other words, the rescinding party is entitled to restitution of the consideration given to the other party.
Service of the summons and complaint constitutes sufficient notice to claim rescission.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Employment / Labor Attorney
This is an area where even experts disagree. But if they are asking for it in the complaint, anywhere in the complaint, then you are on notice of the request and the judge will consider it.
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